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§ 4. The uniform contract on rendering of telecommunication services.

Taking into account a level of development of technologies and convergence of rendered telecommunication services, and also revealed from positions of civil law of essence of activity of the telecommunication companies at rendering of those or other kinds of telecommunication services (services of telecommunication, a telecommunication service in data transmission, a telematic telecommunication service, a telecommunication service for tele-radio broadcasting), we offer to consider separately conclusion possibility between the telecommunication company and the client of the uniform contract on rendering of telecommunication services (further also - the "client" contract) which could replace with itself all named in the present work client dogovory or to include elements separate of them.

By the legal nature the uniform contract on rendering of telecommunication services, in our opinion, it is necessary to carry to group

Contracts on rendering of services, that also is not called in question from the party

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Of some authors.

Meanwhile, it is necessary to consider the problem on possible reference of such contract to the contract of performance of works, including using object of the obligation (the material or immaterial blessings) as criterion of differentiation of the contract on performance of works and about rendering of services. [208 [209]

It is necessary to notice, that in the literature the point of view according to which, criterion of differentiation of contracts on performance of works or about rendering of services the result of realisation by the executor of activity is also is defended. So, in obligations of contract type the result of the executed works always has the substantiated form while at rendering of services the result of rendering of services has no material maintenance. [210]

Thus, at use as criterion of differentiation of contracts on performance of works and about rendering of services of result of activity, at rendering of telecommunication services the result of such activity always will be not substantiated. But, even if to use as such criterion that blessing, on what activity of the authorised subjects is directed at realisation of the rights and duties as proves L.V.Sannikova, at rendering of telecommunication services of a radio-wave, light beams, electromagnetic radiation represent just that immaterial blessing in which occasion there are contractual relations between the telecommunication company and the client.

However as at first sight telecommunication services are similar to power supply, it is necessary to notice, that the power supply contract in a domestic science carry to the contract of purchase. But electric energy is developed created) and can be got with simultaneous consumption in certain units of measure. Thus still V.V. Vitrjansky noticed, that «...energija is not a thing in this connection cannot be transferred to the possession of the buyer. Therefore follows with a known share of care to the power supply contract to apply general provisions of the contract on purchase and sale» [211 [212]. Meanwhile, at rendering of telecommunication services the telecommunication companies do not create, do not make, do not buy, do not sell any product, and only render services in "transportation" of those not substantiated signals which arrive on telecommunication networks from the special equipment.

In connection with stated, in the conditions of a modern level of development of telecommunication services (including considering, that at rendering of telecommunication services "transportation" not only electric signals can be carried out, that could approach us to the power supply contract, but also light beams, radio-waves), it is represented true to carry dogovory about rendering of telecommunication services to contracts of group of rendering of services.

Besides, including in the conditions of formation of a global information society, it is necessary to recognise the uniform contract on rendering of telecommunication services as the public contract irrespective of who is the client (physical or the legal body).

Thus dogovory about rendering of telecommunication services have the features. So, application of item 782 of the Civil code of the Russian Federation about the right to unilateral refusal of the executor from the contract with reference to relations between telecommunication the companies and the client is represented impossible. The position about impossibility of unilateral refusal of the executor from the public contract on rendering of services was stated by the Constitutional Court of the Russian Federation, considering the contract on rendering of paid medical services. So, according to Definition of the Constitutional Court of the Russian Federation from June, 6th, 2002 № 115, compulsion of the conclusion of the public contract loses sense if the right to unilateral refusal of the contract is given to the executor.

A number of telecommunication services as a part of a complex of services received by the client can appear without collection of a separate payment for rendering of those or other concrete services (for example, at rendering konvergentnyh a telecommunication service the same telecommunication company such company can establish the tariff plan proceeding from which the payment is levied for access to a network "Internet", thus possibility is given to the client to carry out are free of charge sonorous in a certain direction or within "package" of minutes). However proceeding from the name of chapter 39 of the Civil code of the Russian Federation «Vozmezdnoe rendering of services» (among such services are named, but a telecommunication service is not defined) vozmezdnost is a discriminating sign of the given type (kind) of contracts. Discussions about possibility or impossibility of civil-law regulation of gratuitous contracts about rendering of services are led in the civil literature for a long time. So, M. And. Braginsky assumed possibility of gratuitous relations, including in an enterprise field of activity. Meanwhile D.V.Murzin suggests to use a gift contract design at modelling of model of gratuitous rendering of services. Other position with which it is possible to agree, L.V.Sannikova, not including a sign vozmezdnosti konstituirujushchim a sign of the contract on rendering of services states. [213 [214] [215] [216]

It is necessary to recognise as one more discriminating feature of such kind of contracts that unique possibility of refusal of the conclusion of the uniform contract on rendering of telecommunication services should be given the telecommunication companies, namely absence of technical possibility of their rendering that is caused by features of telecommunication services.

Besides, in spite of the fact that it is a question of services, owing to the same features of telecommunication services, it is necessary to recognise rendering of such services as services with result which will be considered reached at observance of requirements to process of their rendering.

Interest represents definition of services as object of the civil rights, offered L.V.Sannikovoj. So, as services as object of the civil rights of Sannikova L.V. suggests to understand «actions uslugodatelja on preservation or change of a condition of the immaterial blessings..., made by it in advantage uslugopoluchatelja». Rendering of telecommunication services is really connected with realisation by the telecommunication companies of such activity which is directed on reception by clients of the certain blessings consisting in possibility to transfer/receive the vocal and not vocal information by means of special means, and object of influence at rendering of such services are the immaterial blessings (in this case the messages given, transformed in telecommunication (physical) signals). However the purpose of rendering of telecommunication services is not so much preservation or change of the immaterial blessings, how many such influence for these blessings in which result they become accessible uslugopoluchateljam. I.e. as a matter of fact, telecommunication services consist in moving of the immaterial blessings, thus at reception and transfer the immaterial blessings are exposed [217] transformations (will be transformed in telecommunication (physical) signals), and by means of the equipment uslugopoluchatelja will be transformed to the initial immaterial blessing.

As fairly marked V.A.Ojgenziht, dogovory about rendering of a telecommunication service are atypical by the legal nature. [218 [219] [220] so, in the contract on rendering of services of telecommunication of V.A.Ojgenziht saw elements

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The turnkey contract and property hiring with what, basically, it is possible to agree. For example, activity on a lining of a user's line comprises some elements of contract works. Thus for reception of services of fixed telecommunication, as a rule, the telecommunication company needs to place the equipment or it is direct in the addressee of services of telecommunication, or in adjoining territories (for example, at an apartment house entrance).

Thus, it is possible to say that the contract on rendering of telecommunication services represents a special kind of the contract on rendering of services. It is impossible to disagree with M.I.Braginsky's position which notices, that «... A circle of specially settled contracts vozmezdnogo rendering of services by the certificates accepted outside of GK, and it is possible, and heads in addition included in the Code, will extend». Thereupon it is obviously necessary or to deduce dogovory about rendering of telecommunication services from under regulation of chapter 39 of the Civil code of the Russian Federation «Vozmezdnoe rendering of services» by inclusion in the Civil code of the Russian Federation of a separate kind of the contract «the Contract on rendering of telecommunication services», or to include in chapter 39 «Vozmezdnoe rendering of services» the separate paragraph «the Contract on rendering of telecommunication services».

It is offered to understand the contract according to which the telecommunication company in the presence of technical possibility undertakes to render to the person (client) who has addressed to it telecommunication services as the contract on rendering of telecommunication services, and the client undertakes to pay such services.

On the classification offered by M.I.Braginskim, the contract about

Rendering of telecommunication services should be carried to bilateral,

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konsensualnym and vozmezdnym.

Subject of the contract on rendering of telecommunication services is rendering in aggregate telecommunication services, namely services on:

- To reception;

- To processing;

- To transfer

Telecommunication (physical) signals to which any messages given will be transformed, sent by means of the special equipment on a telecommunication network and to receive which probably as by means of the special equipment which will transform the received signals to messages (a sound, videos given, pictures etc.).

The specified list of telecommunication services includes access granting to information-telecommunication networks, including to a network "Internet". [221 [222]

The listed services (reception, processing, transfer of telecommunication signals), constituting uniform technological process of rendering of telecommunication services, appear with involvement of telecommunication networks (i.e. services come under to rendering on radio system, wire, optical and to other electromagnetic systems), that is a discriminating sign of the given services from any other services, thus services in reception, processing and transfer of telecommunication signals carry independent, instead of the mediated character (as, for example, when it is a question of making contract of purchase and sale by correspondence by e-mail: in the resulted example for purchase and sale making contract each of the contract parties sends the offer or the acceptance on telecommunication networks only in the presence of the contract with the telecommunication company about rendering of telecommunication services, transfer of the offer (acceptance) on

To telecommunication networks in relations with the telecommunication companies for accordingly seller or the buyer has independent character, and in mutual relations between the seller and the buyer transfer of the acceptance (offer) on telecommunication channels is only way of making contract).

In cases and is perfectly in order, provided by the operating

The legislation (now the law regulating specified activity is the Federal act «About national payment system» from June, 27th, 2011 № 161-FZ) the contract on rendering

Telecommunication services besides direct rendering

Telecommunication services in desire of the client can contain the obligation of the telecommunication company on transfer of orders of the client about increase in the rest of electronic money resources for the purpose of realisation of electronic calculations. Transfer of orders is carried out by the telecommunication companies only with use

Telecommunication networks, and granting of orders as is carried out by clients on telecommunication networks. Considering, that in this case the maintenance of the obligation of the telecommunication company consists not only in transferring telecommunication signals, and in wider activity (to conclude corresponding dogovory with the credit organisations to ensure the credit organisations of orders of clients about increase in the rest of electronic money resources, carrying out of operations under the notice of clients on successful operation on increase in the rest of electronic money resources in the credit organisation, performance of actions for reduction of the rest of money resources on personal accounts of clients after the rest of electronic money resources in the credit organisations, actual transfer of money resources to the credit organisations after increase in the rest of electronic money resources under the order of the client submitted through the telecommunication company etc.) has increased next day, given

The obligation cannot be covered by a subject of the contract on rendering of telecommunication services and consequently should be established in the contract separately. Thus, considering, that activity of the telecommunication companies on transfer of orders of clients about increase in the rest of electronic money resources cannot be carried out in a separation from activity on rendering of telecommunication services, activity realisation on transfer of orders of clients about increase in the rest of electronic money resources probably only at rendering of telecommunication services and only at corresponding will of the client. [223]

For reception of telecommunication services it is necessary to use the special equipment. If other is not provided by conditions of the "client" contract on rendering of telecommunication services, the equipment should be given by the client. The equipment used by the client should be certificated in the order established by the legislation (such equipment can be: phone, the television receiver, a radio receiver, the computer etc.). The given requirement should be imperative as application of the equipment which is not meeting given requirements, can lead to that telecommunication networks will be put out of action that as a whole can aggrieve not only to clients and the telecommunication companies, but also safety of the state.

As the parties of the contract on rendering of telecommunication services will act the telecommunication company on the one hand, and the client (physical or the legal body) on the other hand. Taking into account requirements of norms of the public law (the secret of a private life, secret of the communication, the Russian Federations guaranteed by the Constitution) on the party of clients cannot act at once some persons that is caused by technology of granting of access to telecommunication services and order of granting of data on use of the given services. For example, on request of the client the telecommunication company will be obliged to give to the client of data on detailed elaboration of telephone conversations, thus access to such data is possible from a personal office in a network "Internet", however owing to technological features of work of the automated system of calculations and used for this software not always it is obviously possible to differentiate data on calls of several clients under one contract. Thus, with a view of balance maintenance between private-law and public interests in the list of requirements to the parties under the contract on rendering of telecommunication services it is necessary to include a condition about an interdiction of plurality of persons for the party of clients.

Essential ____________________ treaty provisions about rendering

The telecommunication it is necessary to consider conditions:

- About its subject (rendering of telecommunication services and, at will of the client, activity realisation on transfer of orders of clients about increase in the rest of electronic money resources to the credit organisations at the expense of the money resources brought in payment of telecommunication services);

- About user's number or a unique code of identification;

- About the address of rendering of such services (for the fixed telecommunication services or for the contract with the speaker).

The offered positions about essential conditions follow from those conditions which are recognised by essential to contracts on rendering of concrete types of service of communication (a telephony, access to a network "Internet" etc.).

Concrete telecommunication services can be as are initially specified in the contract on rendering of telecommunication services, and can be ordered the client unilaterally during period of validity of such contract, including implicative actions (for example, by opening "Internet" of a-browser with computer use).

It is represented, that after making contract about rendering of telecommunication services, any services requested by the client at any moment will be accessible to the client. So, the client can start in any time moment to use a telephone fixed-line telephony, having connected the equipment to a user's line which should be generated under treaty provisions about rendering of telecommunication services in the address specified by the client. Considering possibility konvergentnogo rendering of services with involvement of one user's line, having connected to the same user's line at any moment TV-receiver or the computer, the client can receive accordingly a telecommunication service for tele-radio broadcasting or a telematic telecommunication service. By installation in the user's equipment of the identification module received by the client from the telecommunication company at making contract about rendering of telecommunication services, the client can start to use mobile radio telephone communication. Thus, the telecommunication company will have the right to give up in granting of the telecommunication services ordered by the client only in case of absence of technical possibility of rendering of those.

Besides, at making contract about rendering of telecommunication services the client should express the desire or refusal of reception of telecommunication services in roaming (i.e. in networks of other telecommunication companies with which the client does not consist in contractual relations, for example, at trip abroad the client can make calls by means of a mobile phone, but rendering of such services is carried out with attraction of the foreign telecommunication companies acting roumingovymi as partners). In this case the design of the provisional rule establishing an interdiction for reception of services in roaming if other is not specified in the contract is possible. The interdiction can be caused that at rendering of a telecommunication service in roaming, it is necessary for telecommunication companies to transfer data about the client (personal data in sense of the Law «About personal data» from and data on the subscriber in sense of item 53 of the Law «About communication» from July, 7th, 2007 № 126-FZ) roumingovym to partners with which the client does not consist in contractual relations. Taking into account what for the purpose of observance of the rights of clients for transfer of such data will of the client which can be as separate is necessary, and at once to join in the contract (for example, at a choice the client of the tariff plan on which conditions the complex of services (telecommunication service at once is given to the client, including a telecommunication service in roaming, a telematic telecommunication service (access to a network "Internet"), a telecommunication service for a cable announcement).

As to the form of the contract on rendering of telecommunication services to the contract form general provisions of the Civil code of the Russian Federation should be applied, including ch. 2 items 434 of the Civil code of the Russian Federation according to which the contract on rendering of telecommunication services can be concluded by drawing up of one document signed by the parties, and also by an exchange of the electronic documents transferred on communication channels, allowing authentically to establish, that the document proceeds from the party under the contract.

So, if the client already uses mobile radio telephone communication, the identification module [224 [225] with appropriated user's number is given out it, and one more identification module is necessary for the client, for identification of the client probably to use an exchange short text messages (sms) with use of available user's number. Making contract and delivery of the new identification module in

The specified case probably with application of the special equipment -

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Analogues vendingovyh devices.

Similarly with use of the special equipment or at office of the telecommunication companies or their representatives, or in a personal office of the client on a site of the telecommunication company, it is necessary for client to give possibility to order concrete kinds of telecommunication services or to refuse those completely, or in a part. For access reception to such services to the client equipment access to a network of the telecommunication company with connection possibility to such network of the special equipment and reception/transfer of telecommunication signals will be already organised. The telecommunication company in the terms established by the contract will check technical possibility of rendering of the ordered services about which results to notify the client in the way convenient for the client. The further interaction of the client also should be carried out in an order provided by the "client" contract.

Taking into account the legal nature of the contract on rendering

Telecommunication services and reference of this contract to group of contracts of rendering of services, important questions of a responsibility of the parties under the contract are represented. L.V.Sannikova, in detail studying the nature of obligations about rendering of services, suggests to establish in the legislation a presumption garantirovannosti result of services if other does not follow from the law, contracts, custom or an obligation being. In the same cases when the result is not guaranteed, speech should go about qualitative process of rendering of services. [226]

It is represented, that the approach about qualitative process of rendering of services is absolutely true and concerning the contract on rendering of telecommunication services. It is represented, that telecommunication services can be carried to services with result under which followed understand such level of a telecommunication signal which would provide transfer of any messages of clients with performance of legislatively established requirements to appropriate speed of such transfer and percent of losses of messages. I.e. the result of rendering of services is possible under condition of observance by the telecommunication companies of all requirements to process of rendering of services. Thus assistance of the client in reception of such services is important. So, clients should use only the certificated equipment for reception of services, have not the right to abuse obviously received telecommunication services (for example to dispatch "spam").

Moreover, the telecommunication companies carry out activity on the basis of the licence, thereby requirements to quality of rendering of telecommunication services are shown at level of is administrative-legal regulation. In connection with specified, concerning responsibility of the telecommunication companies the duty establishment under the indemnification is represented proved to clients at refusal to aid (there is no result of rendering of service, for example, it is impossible to establish telephone connection), inadequate rendering of services (for example, services appear, but level of a telecommunication signal very weak in this connection, there are hindrances and delays in reception of telecommunication signals) if only refusal to aid, inadequate rendering of those has arisen because of the client or owing to the circumstances which are not dependent on will of the telecommunication companies which they could not affect in any way. It is necessary to carry to number of such circumstances, including Acts of nature in which force the signal transmission could worsen, interrupt and so forth, actions of the third parties which attract impossibility of rendering of services and prevent which the telecommunication company cannot (for example, the termination of distribution of television channel by the speaker), the edition of the certificate of the state body as a result of which coming into force, rendering of services becomes impossible (for example, at withdrawal of radio frequencies for the state needs).

Application of measures of responsibility to the client in case of infringement of requirements by it to an order of reception of telecommunication services is proved. Thus for the purpose of protection more weakness of the contract to which number it is necessary to carry clients - physical persons, is possible restriction of responsibility of those of by legislatively established penalty at infringement of the specified treaty provisions from the last.

As it was already marked, granting is represented incorrect to the telecommunication companies unilaterally nemotivirovanno to refuse execution of a contract about rendering of telecommunication services. The granted right should be limited only by technical impossibility of rendering of those or infringement of treaty provisions from the client (for example, use by the client of not certificated equipment, default of duties on fee) with term granting on correction of lacks.

Meanwhile, sees possible to accord a right to unilateral refusal to the client as more to "weakness" under the contract. Moreover, when in the contract directed on service of citizens on the party uslugopoluchatelja, the citizen acts, the right to unilateral refusal of A.E.Sherstobitov's contract interprets as «the grazhdansko-right means of consumer's right protection». [227 [228] At unilateral refusal of execution of a contract, clients should compensate to the telecommunication companies the actual expenses which were taking place for date of a termination of the contract, and to pay cost of the services rendered to the client for date of cancellation of the contract. Besides, as truly marks L.V.Sannikova, the structure of actual expenses should join not only expenses which are actually suffered in connection with already rendered services, but also those expenses which the telecommunication company on account of yet not rendered services (for example has incurred, expenses for the communication channel organisation).

Thus, it is necessary to consider the uniform contract on rendering of telecommunication services as a special kind of the contract on rendering vozmezdnyh the services, having the features and being public contract. Application of a design of the uniform contract on rendering of telecommunication services will have the big practical value as will allow to simplify procedure of the conclusion/change of contracts in the specified sphere, will raise loyalty of clients, will accelerate processes of connection of the client equipment to telecommunication communication centres, will promote convergence and expansion of business of the telecommunication companies, granting of versatile telecommunication services with high quality of their rendering. All specified, finally, will promote legislation perfection in the specified sphere and will allow to provide with the advanced telecommunication services all population of Russia.

Practice of application by arbitration courts of norms of the Civil code of the Russian Federation about some bases of a discharge »//the Bulletin YOU the Russian Federation. 2006. № 4. (Review).

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A source: Kuznetsova Oksana Aleksandrovna. CIVIL-LAW REGULATION of CONTRACTUAL RELATIONS In SPHERE of TELECOMMUNICATION SERVICES. Moscow - 2001. 2001

More on topic § 4. The uniform contract on rendering of telecommunication services.:

  1. §1. "Client" dogovory about rendering of services of telecommunication: local, vnutrizonovoj, long-distance and international telecommunication, mobile radio telephone communication.
  2. § 3. Dogovory concerning rendering of telecommunication services for tele-radio broadcasting.
  3. § 2. Features of the civil matters developing concerning rendering of telecommunication services.
  4. Chapter 2. OSNOVYE KINDS of the CONTRACTS NECESSARY FOR MAINTENANCE of RENDERING of TELECOMMUNICATION SERVICES.
  5. 2.3. The contract maintenance on rendering of paid educational services
  6. 2.2. Making contract on rendering of paid educational services
  7. CHAPTER 3. "CLIENT" DOGOVORY ABOUT RENDERING OF TELECOMMUNICATION SERVICES.
  8. 2.4. Responsibility under the contract on rendering of paid educational services
  9. CHAPTER 3. The contract on rendering of services of the lawyer
  10. §2. Features of the "client" contracts concluded for rendering of a telematic telecommunication service and a telecommunication service on data transmission.
  11. SECTION 2 the CONTRACT GENERAL CHARACTERISTIC ON RENDERING of PAID EDUCATIONAL SERVICES
  12. 2.1. Concept of the contract on rendering of paid educational services and its place in liability law system